WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Sunday, November 26, 2006

A CALL TO ARMS

Yesterday we received this call to arms:

Anonymous said... (in part)HERE IS YOUR CHANCE AT TRUE GREATNESS FOR RUMPOLE AND HIS BLOG. The State of Florida has many priorities above and beyond abiding by the 6th Amendment to the U.S.Constitution. Why don't you step up to the plate and have all your blogger friends come up with all the waste in the state and county government which the State feels supersedes the representation of the poor and payment of the people in the system. I believe the Justice system in Florida, 1/3 of the three branches of government accounts for less than 5% of the State Budget. ... Expose the fact that we are grossly underpaid and now the poor will suffer with experienced attorneys no longer willing to work for peanuts and having to wait months AFTER THE CASE IS FINISHED to be PAID. .. Judges get 12000 a month, KFR and BB the same. Do a murder case for the state, get death threats, stress, criticism etc. and don't get paid and have to live off savings and credit. .. THE BUDGET FOR THE COURT SYSTEM SHOULD BE TRIPLED and spending 75 million a year on a bullet train study is an example of why SAPDS, COURT REPORTERS ETC. are told to f themselves. .. By the way, aren't we the attorneys who keep chaos from happening- there aren't many super rich clients with super rich attorneys and that is usually federal court.WE ARE THE SYSTEM. PERHAPS WE SHOULD STRIKE?

Rumpole responds: Now before you pull the signs and paint out of the garage, just settle down a minute.

To quote one of our favourite movies, “This is the business we have chosen.”

What we mean is that by practicing criminal law, we have traded a certain amount of financial security that large civil firms offer, for the enjoyment and satisfaction of practicing the type of law that we enjoy.

No one owes you a living. Nor is it your business what a Judge or another attorney earns. That is their private business.

However, you touch on certain valid points.

Entry level prosecutors are under paid. If we want a safer community, prosecutors should be paid a living wage. We remember one former ASA who wrote that at the end of the month he had to call in sick because it was a choice between feeding his child, or paying for gas. That is wrong.

If the government wants to warehouse humans convicted of crimes for decades if not life, then the government owes all of us the ability to insure that those people accused of crimes are being provided the best damn defense possible. We agree that as citizens we are entitled to the best damn prosecutors and well trained police officers. But for the system to work, the playing field must be level.

We have got to stop putting innocent people in jail.I know certain distinguished prosecutors with the initials AL may disagree with us on the percentages. But we again postulate that if you extrapolate the number of INNOCENT people sentenced to death to the hundreds of thousands of inmates convicted of non-death penalty crimes, (where the level of post conviction scrutiny is not as high) there must be thousands, perhaps 10,000 innocent people in our prison system today. (Nationwide, not just Florida.)

No decent government can condone that sort of treatment of its citizens.

The system is broke, monetarily and systemically.

Here are some possible solutions.

1) This “conflict” business of the PDs has to stop. You mean to tell us that a top PD trial lawyer cannot represent a defendant because one of their PDs in county court represented a witness on a DUI? That dog won’t hunt.

2) If you did away with the court appointed attorney system, many criminal practitioners would have to move to a different area of the law. That is not a bad thing. That is economics at work. As many have pointed out, the court appointed system was designed as a way for successful practitioners to give something back, not as a primary way for attorneys to earn a living. (If you have ever wondered about our need for anonymity wait to you read the posts from our colleagues in response to this. )

4) If you set up a separate “conflict section” of the PDs office, you have your solution.

This is what the case law calls a “Chinese Wall” : when prosecutors in one part of their office are prosecuting a defendant who is a witness for the prosecution in another case. The PDs could do the same thing. Duh.

Give the PDs another $1,000,000.00 a year. Hire four or five attorneys plus support staff, and you are up and running with a new "conflict unit." Ok-make it two million and hire ten attorneys. Any way you slice it, it's cheaper than what we're spending now.

6) OR- because we don’t like death threats, you can just raise taxes and give private criminal defense attorneys another 50 million a year to divvy up.

Here is the real problem. When children are going hungry; when our kids are being shot at in the streets and are attending schools that have weapon screening at the doors; when the poor have no health care other than the Jackson ER room; when teachers can’t afford to buy a nice home; when the City of Miami and Metro Dade CANCELS our recycling service (boy are we peeved about that); do we really think that criminal defense is the number one priority?

Teachers, police officers, social workers, hospitals, libraries, schools, all play as important a part in our society and well being as we do; probably more.And each one of those professions or institutions is in need of money.

Since we think the chance of adequate funding is about the same as Judge (insert name of your favourite judge here) being named to the 3rd DCA, then we as criminal defense attorneys have to accept that the system is broke and will not be fixed by throwing money at it.

There has to be another way. We can lead the way on this. We can make the system better. Stronger. More efficient. (Is anyone else having a flash back to the opening scenes of the 6 million dollar man TV show?)

61 comments:

ABE LAESER
said...

By all means, let us redirect monies to keep me from having 'job security' because we have such rampant pockets of poverty in our community - where education is too often overlooked - that I can literally see yet another generation of criminals coming to fruition.

Let NO innocent person ever go to prison, or even be prosecuted. Please, Rumpole -- tell me how! My own family and I suffered under an evil regime before we came to America. I believe in pure justice -- tell me how.

The persons I vote for promise a better world, but it has only become incrementally better during my lifetime. Please solve these problems for us, Horace.

I know that we are all but small cogs in a vast morass - the courts. I fully endorse an alternate public defender system. All aspects of the courts are grievously underfunded. How can society pay for 'the best of the best' to go into public service? We deserve no less. How can we convince the taxpayers to fix it? We can yell, and moan, and blog; but are we closer to a solution?

On the day when a path to a solution is clear, please count me in as a standard bearer in the war to make our lives safer and better. You know how to reach me.

how about we limit court-appointed attorneys (public defenders included) to the people who truly CAN'T AFFORD an attorney (as opposed to those who would simply RATHER NOT PAY FOR an attorney)? the rampant rubber-stamping of indigency applications is part of the reason the court-appointed system is so overloaded. i've seen supposedly "indigent" defendants in court wearing far nicer shoes and watches than their APDs or the ASAs. that's just fucked up.

PDs try to find every way possible NOT to conflict out on a case because it poses such a problem. PDs work very hard and are not simply trying to lighten their workload by conflicting out. It is in the interests of clients that we avoid any hint of impropriety, especially given the low opinion that most defendants have of their attorney. Any shade of bias, or any question of conflict would surely become a prime target for the SAO. Perhaps Miami should adopt a system similar to LA, where they have an "alternate PD office" which is also run by the county but housed in a separate building and is a completely different entity. This allows individuals to still be represented by public defenders, even when conflicts arise.

The other day, someone made the comment, "Who is going to pay my mortgage until the JAC comes up with the money." This is the problem with Miami and people trying to keep up with Mr. and Mrs. Jones. I know an attorney who publicly describes/brags about being "rich" and/or "wealthy". However, a quick search of the public records in Dade County will show that he has a second mortgage on his homestead and has defaulted on his student loans. I think I will pay over a thousand dollars a month in student loans, be slap broke and keep my reputation.

I personally would like to thank the pd for conflicting off almost all the most difficult cases. Private sapds can devote more time and attention which is good for the client facing 30-Life and dozens of us make money-at least a little. Today's comments have set me straight and I have been corrected. Now let's continue to have little funding for the 3rd branch of government compared to the other 2 branches and let's move full steam ahead with the following: a new baseball stadium, parking for the opera house, engineering studies for tunnel to Miami Beach, the bullitt train proposal, studies about water flow in the Everglades-15 years of that now(remember Dexter Lehtin), cars -phones-dinners for elected officials(city of Sunrise),politicians who spend more time running for the next office than doing the job they were elected to do, and any other wasteful programs that others can think of- oh yeah a cop making 100000 a year in overtime at the port of miami for babysitting containers and cruise ships- when was the last time either of them were stolen. FINALLY please forgive my bitterness but I have seen how nice the courthouse in Orlando, Naples, WPB, Fort L. are and the shithole we still have in Miami- but thanks for the green canvass top. In a city that prides itself on chic and glamour couldn't they have done some better renovation to the courthouse than green canvass to house people from the rain while the keystone cops harass people going to court- particularly the lawyers they are jealous of.

It is in the interests of clients that we avoid any hint of impropriety, especially given the low opinion that most defendants have of their attorney. Any shade of bias, or any question of conflict would surely become a prime target for the SAO.

Rumpole says: That is precisely the attitude that we believe is causing the problem. Nobody would believe that the barest hint of a possible conflict would actually make a PD work less hard for their clients. This problem has an easy PARTIAL solution- STOP CONFLICTING SO MUCH. You guys do a great job. Build a chinese wall in your office and keep the blasted cases.

As to Mr. Laeser- so we are clear- we fully believe he would be the first person to dismiss charges against an innocent defendant. We do recall that he did pooh-pooh (to use a legal term) our attack on eyewitness identification. However, what do you think Mr. L? Given the number of innocent people on death row, how does that translate to the general population of people convicted of crimes? Do you think there is a problem? And if so, how do we solve it?

The problem is systemic. The prosecutors are not doing one of the jobs they are supposed to: examining closely the police collected evidence with a degree of suspicion.

In other words, the SAO is failing to recognize that the police are highly motivated to arrest and gather evidence to convict people they believe committed crimes. This causes some officers to not collect evidence favorable to the accused and more importantly, to cooerce confessions and witness statements that are either slanted or untrue. Of course, this does not happen all the time, or even often. But it does happed and the SAO even more rarely does anything about it.

Couple that with the fact that police think that they may act as though they are above the law--albeit with even the best intentions--and you get the recipie for wrongful conviction.

Of course, the fact that the SAO itself has now openly been exposed as breaking the law (see Jose Arrojo's recent statements to the Herald about doctoring the clerk's records) and the situation only worsens because the police can be assured that when the SAO believes that illegal conduct is in the best interests of society, the conduct is suddenly not deemed to be illegal.

This is why all you people who defend Arrojo's conduct have missed the point entirely, one seemingly inocuous act, leads to and is a part of the breakdown in our system.

let's not forget JAC is not on screwing with sapd's cases who may or may not depend on that money for the mortgage but court reporters who A LOT do depend on JAC's money to pay the bills........ so if you private attys have sooo many cases, try paying your court reporters so they can drive off in their nice benz's too.....

I have no idea if someone is "openly gay" or not. But unles there is some very relevant or rare issue, it is not subject for this blog, so I removed a comment.

Very few public officals are referred to as "openly hetrosexual" or "openly catholic" or "Openly asian", or "President Bush, the first president to openly admit he enjoys anal sex with his wife", so I see no reason to refer to someone as "openly gay".

Thr guidelines in the appointment process should be followed.Inquiry should be made properly regarding a defendants financial position;not just cursory inquiry as most county court judges do.Circuit Court cases require an attorney in every case;not so in county court.Not even after review of the Tur decision.People own homes worth in excess 0f 100 K and get P.D.'s;defendants 93 year old mothers drive Hummers with the defendant only paying for gas and they get P.D.'s;defendants have old cars(restored and antiques)and get the services of the public defender.It is up to the Clerk and the Judges to effectuate the changes needed to see it that only proper defendants, the truly indigent get attorneys appointed.But it is up to the bar associations and the attorneys to be the "seeing eyes"for the system and report inappropriate actions.We need Public Defenders,we need Spacial Assistant Public Defenders and we need a strong effective defense bar willing to speak up for wrongs being done in the appointment process!!!!

As to my continuing discussion with the Dean Of All Prosecutors, I say this: We are all human, so error is inevitable. But here is a start: Recognize the science behind eyewitness identifications. Every prosecutor should read the Seven Sins Of Eyewitness Identification.2) Pay people who defend defendants a reasonable amount of money. Capital defenders get an unlimited budget for fees. Why should a defense attorney representing a 17 year old child facing life in prison for armed robbery be limited to 3500 in fees? Incarcerating an innocent child is murder on his or her soul.

3) Get congress to ease the F up on the rules for habeas corpus. Do you know that as things now stand, federal judges can and have written that a person should be denied relief, even if they are INNOCENT because they or their stupid attorneys didn't follow the rules.

You want to know how to fix things? Start with reasoning like that. Go to congress, testify as an expert prosecutor and tell them you are horrified to read a judge write that an innocent person should be denied relief. That's a good start.

Hey Abe: When was the last time the sao gave a handbook to cops on miranda rights, or a training seminar. Half the cases with confessions lead to motions to suppress filed in good faith because cops don't know what custodial interrogation is. Just look at episodes of cops and see the questions cops ask without reading Miranda. Cops should have at least an associates degree and be paid more to start. Having high school graduates with c averages enforce 200 pages of criminal laws is a joke. Until our society becomes much less violent cops should be worrying about felonies, duis and spouse abuse and their should be a hell of a lot more fhp on I95 to cut down on reckless speeders. Most mm are garbage and cops should't be wasting their shifts on petit theft, disorderly intox. etc. when there are probably several hundred outstanding felony warrants just in Dade.

How come no response to anonymous's broken window's theory of the decline of respect for criminal law / accused's rights -- Jose Arrojo admitting to a policy of the SAO, that breaks the law, and nobody doing anything about it because LEOs breaking the law is nothing new, and too often tolerated?

Rump, I have to take issue with your Randian leanings. First, I would note that there is ideological tension between your respective prises de position. She was no fan of public education and would have blanched at the thought of universal health care. You, I believe, are on record in favor of both.

But my real reason for writing is to challenge your dismissal of the idea to require all criminal defendants to accept the services of the public defender. I do not see how you can rationalize your opposition to this idea. (And, I'm out of a job is not a rationalization!)

First of all, we all agree that as the system currently functions, indigent defense is woefully underfunded. Do you think for a second that this chronic underfunding would continue if the middle and upper classes knew that if they ever got arrested they would have to use a public defender? Hell no! If Brickell bankers and Miami Beach real estate developers had to avail themselves of the same lawyers as Overtown drug dealers, those lawyers would be a lot better trained and paid, would have more resources at their disposal, and would have smaller case loads.

Still have doubts? Compare public school systems in wealthy jurisdictions with those in urban ones. The public schools on the North Shore of Long Island, in Montgomery County, Maryland, in Greenwich, Conn. are some of the best in the country precisely because they are attended by the children of the upper and middle classes who won't settle for anything less than the best. Thus, these school districts are fully funded and staffed. Urban school districts, on the other hand, are woefully understaffed and underfunded because there is no pressure from the middle and upper classes to improve them. And there is no pressure because these urban school districts by and large do not serve the middle and upper classes. In short, if a public service provider is utilized by the middle and upper classes, it becomes first rate. And the only way to have the middle and upper classes utilize the public defender is to force them to do so.

Second, much of the American public already distrusts our system of criminal justice because they believe (perhaps rightly so) that it functions a deux vitesses--that the wealthy can buy preferential treatment, even acquittals, a la OJ. Requiring all criminal defendants to utilize a public defender would restore confidence in the fairness and equality of our system of criminal justice.

Third, while we all agree that all criminal defendants should be entitled to legal representation, many find there to be something obscene about private criminal defense attorneys taking money from those accused of horrific crimes. The old charge "that's blood money" can have the ring of truth in certain cases. To accept hundreds of thousands of dollars to defend vicious Colombian drug traffickers is obscene; it is tantamount to accepting blood money. These Colombian drug traffickers are certainly entitled to legal representation, but why not require that they be represented by the public defender, and thus preclude the possibility that anyone might profit from their misdeeds.

All in all, Rump, socialism often works. Look at Scandinavia. There's no reason that we couldn't (or shouldn't) import a little Baltic socialism into our system of criminal justice.

Rump, I have to take issue with your Randian leanings. First, I would note that there is ideological tension between your respective prises de position. She was no fan of public education and would have blanched at the thought of universal health care. You, I believe, are on record in favor of both.

Rumpole replies: you have correctly identified an apparent contradiction in my beliefs. You deserve a reply- I am a humanist- I see suffering and want to help end it. Philosphically, If you and I had the time, I could make a strong case for privitizing health care and education. I believe at its heart, pure capitalism as an economic and political system helps more people than our quasi-socialist state. Since that may not happen in my life time, I am not willing to sit by and watch people abused by politicans. If we are going to tax and spend in the name of altruistic collectivism, then at least spend the money on people. But there in lies the contradiction- altruistist statists only say they want to help people. They use the altar of altruism to actually enslave or kill people- every law passed in Nazi Germany was passed in the name of the Public Good.

But enough weird stuff:

Anonymous also said:

But my real reason for writing is to challenge your dismissal of the idea to require all criminal defendants to accept the services of the public defender. I do not see how you can rationalize your opposition to this idea. (And, I'm out of a job is not a rationalization!)

Rumpole says: I think you have mispoken. I do not want ALL defendants to accept PDs- just 99% of those that are indigent. I am fully in support of private attorneys charging fees and earning a living. Lord knows I try.

Scandinavia???? Have you ever heard anyone say: "I have a rare heart disease and am going to Scandinavia to get help?" Socialism is seductive- the ideals sound nice- but they socialists can't produce or create- because they have no incentive. Did Scandinavia or any socialist country produce the microchip, or create a silicon valley? And in the end, what will benfit mankind more- free dental care for a few million Scandinavians, or the computer? Henry Ford and Bill Gates and Dr. Jonas Salk and Dr. Michael DeBakey don't come from Socialists countries. And they never will.

Rump, you misunderstood my post. I want all criminal defendants to be represented by the PDs. I know you disagree with me. My only question is how can you rationalize your disagreement?

And as for pure capitalism being a positive model, surely you jest! Even the most thoroughly Chicago-trained economists admit that pure capitalism can never effectively price the cost of negative externalities, pollution and environmnetal degradation being the most obvious of many. Pure capitalism will destroy this planet, literally.

Actually, Rump, you're wrong. The NY Times had an article several months ago about how Europe is claiming a greater and greater percentage of scholarly peer-reviewed scientific articles in the leading science and medical journals. The American edge in science and technology is slipping. Where was the first face transplant? La France. What countries are home to some of the largest and most innovative pharmaceutical companies? England. France. Sweden. Switzerland. And the USA. What country exports more sophisticated engineering technology than any other? Germany.

There is no doubt that a winner-takes-all pure capitalist spoils system encourages innovation, but the real question is, what health care system would you rather have: one that consumes a greater portion of GDP than any other and covers only 75% of its people, but allows that 75% to have all sorts of exotic and cutting edge operations/treatments, many of which are of doubtful efficacy, or one which consumes 30% fewer resources, but covers all people, at the cost of telling some very sick people that spending 2 million dollars on some untested procedure that even if successful will add only 6 months to their lives is simply not socially justifiable? I choose the latter.

John Steinbeck, Steven King, Neil Armstrong, Nuclear Power, Hollywood, Harvard, Steven Speilberg, Snow boarding, surfing, Jazz, Springsteen, Bill Cosby, MIT, hula hoops- the point is the freedom to try and the incentive to succeed are almost uniquely American. I do not doubt that other counties can take our innovations and apply them to great benefit of their citizens. But when a Saudi Prince gets sick- where does he go? MD Anderson or Scandinavia? Only one country on Earth has put a Human on another planet and invented Rap Music. There must be a reason why.

As to Capitalism, I don't have the space and the readers don't really care to read my defense of it. Buy Any Rand's The Virtue Of Selfishness or Capitalism The Unknown Ideal, and spend a weekend reading and learning.

The real problem with the public defender system has several components.It is a fact that the Pd / sapd system is overburdened by large numbers of defendants who are not truly indigent. This is because entities in system have an incentive to funnel cases to the Pd. It starts at bond hearing where it is announced that “the public defender” is appointed unless I say otherwise. If the bond-hearing judge did actual colloquies on indigence the calendar would take all day (heaven forbid), maybe all night. At arraignment judges routinely ask defendants if they can afford a lawyer? Most say no and are ultimately appointed the pd. average people haven’t the slightest idea how much a lawyer would charge, this aunt civil court where it is two hundred and fifty bucks an hour. Prices vary wildly from one criminal lawyer to the next. You can if you looked (not too hard), probably find a lawyer who will handle a murder case for a thousand dollars (paid in monthly installments). How about requiring defendants interview three lawyers and provide the court with their names before deciding if a Pd will be appointed? The Answer, it would take too much time of course. Sending defendants out to test the market would require cases being reset, would clog dockets and would cause judges to have work past two PM, even on days when not in trial. Why doesn’t the public defender police who uses it’s services? Well, Pd funding is set in part by …….you guessed it, the number of defendants the Pd represents. The more clients the Pd have, the more money from Tallahassee in the budget. ‘Nuff said about that. Bottom line is the public defender should serve only the truly indigent; all others should pay for their mistakes (pun intended) at least before trial that is.

The public won't like it when the ambitious Arrojo decides that he wants to be appointed to some position of trust, or runs for office. Nobody wants to be accused of being associated with officials that acquiesce to breaking the law, no matter what law is broken.

Saying, 'yes, I was aware of and participated in a policy that was illegal, but for good reason' does not swallow easy when it comes under the scruitiny of an election or review for some form of appointment.